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2024 DIGILAW 580 (KER)

Sijo Thomas S/o Thomas v. State of Kerala

2024-05-30

A.MUHAMED MUSTAQUE, S.MANU

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JUDGMENT : S. MANU, J. 1. The petitioner is the applicant in O.A. No. 487 of 2021 of the Kerala Administrative Tribunal (KAT), Thiruvananthapuram. He is challenging the final order dated 9.2.2023 passed by the KAT by which the original application was dismissed. 2. The issue involved in the case relates to the transfer/recruitment from in-service candidates to the post of Range Forest Officers in the Forest and Wildlife Department. In the O.A. the petitioner stated that he is working as Beat Forest Officer. He joined duty on 20.10.2011. As on the date of filing the O.A. the petitioner was aged 34 years and claimed to have qualifying service of 9 years, 4 months and 16 days. 3. By Annexure-A4 notification dated 30.8.2016 of the Kerala Public Service Commission (KPSC) seven vacancies of Range Forest Officers were notified for recruitment by transfer from Forest Officers, namely, Wildlife Assistant, Deputy Ranger, Forester and Beat Forest Officer. It has been clearly stated in the notification that the number of vacancies mentioned are provisional, subject to change according to the allotment of seats by the Director of Forestry Education, Ministry of Forests and Environment, Government of India and due to arising of more vacancies. A note below the column showing the number of vacancies is included which is re-produced hereunder: “Note: The Ranked List of candidates published by the Kerala Public Service Commission in pursuance of this notification shall cease to be in force after one month from the date of commencement of training (Forest Range Officers Course) or 3 months from the date of coming into force of the ranked list whichever is later.” 4. The Special Rule for the Kerala Forest service prescribes the qualification for appointment to the post of Range Forest Officer by transfer. As shown in Annexure-A4, for seeking appointment by transfer, the candidate should have minimum 5 years service in the feeder category post. The maximum age limit stipulated is 40. 5. The petitioner admittedly had not completed 5 years service in the feeder category when Annexure-A4 was issued. Therefore, he was not eligible to apply for appointment when the recruitment process commenced pursuant to Annexure-A4 notification. The petitioner filed O.A. No. 487/2021 before the KAT in July, 2021 after Annexure-A6 ranked list came into force on 28.1.2021. 5. The petitioner admittedly had not completed 5 years service in the feeder category when Annexure-A4 was issued. Therefore, he was not eligible to apply for appointment when the recruitment process commenced pursuant to Annexure-A4 notification. The petitioner filed O.A. No. 487/2021 before the KAT in July, 2021 after Annexure-A6 ranked list came into force on 28.1.2021. Thus, it clearly emerges that the petitioner was not eligible to take part in the selection process pursuant to Annexure-A4 and that he raised no challenge against Annexure-A4 till the process was completed and the ranked list came into force. It is also to be noted that, though the ranked list came into force on 28.1.2021, the O.A. was filed much later in July, 2021. It is pertinent to note that the short list was published much earlier, on 02.11.2017. 6. The following reliefs are sought in the OA: “(i) To declare that the provision in Annexure A4 notification that the seven notified vacancies are provisional and subject to change due to arising of more vacancies is illegal and violative of Articles 14 and 16 of the Constitution of India. (ii) To direct the 3rd respondent to fill up only seven vacancies notified in Annexure A4 notification from Annexure A6 rank list and to issue fresh notification for all the vacancies set apart and reported for by Transfer recruitment after Annexure A4 notification in accordance with Rule 13 of Kerala Public Service Commission Rules of Procedure. (ii)(a) To set aside the appointment of respondents 6 to 35 as Range Forest Officers from Annexure A6 rank list. (iii) Issue such other directions or orders as this Honourable Tribunal deems fit and proper in the facts and circumstances of the case, in the interest of justice.” 7. The Government, PSC and the party respondents filed separate reply statements in the O.A. In the reply statement of the Department it was contended that the O.A. has been filed without proper understanding of the Rules and Procedures followed by the PSC and that the contentions of the applicant are untenable. In the reply statement filed by the PSC it was stated that the ranked list for the post of Range Forest Officer was published with effect from 28.1.2021 and a total number of 40 candidates were advised on 24.2.2021, 29.6.2021 and 21.12.2021. In the reply statement filed by the PSC it was stated that the ranked list for the post of Range Forest Officer was published with effect from 28.1.2021 and a total number of 40 candidates were advised on 24.2.2021, 29.6.2021 and 21.12.2021. Referring to the second proviso to Rule 13 of the Public Service Commission Rules of Procedure, 1976 the PSC pointed out that the ranked list will be in force only for a period of three months from the date of finalisation of the ranked list or one month from the date of commencement of the training course whichever is later. It was further stated that the validity period of Annexure-A6 ranked list expired on 27.4.2021 as it crossed three months and the training of the candidates had started on 9.8.2021, 16.8.2021 and 27.9.2021. The Commission refuted the contention regarding cut off mark and inclusion of candidates in multiples of vacancies notified in the ranked list. The party respondents in their reply statement specifically contended that the applicant has no locus standi to maintain the O.A. Apart from disputing every contention in the O.A. they relied on Rule 14 of the PSC Rules of Procedure. It is the case of the respondents that in view of Rule 14, all the vacancies notified as well as arising during the currency of the list shall be filled up by appointment of the candidates included in the list. They relied on the judgments of this Court reported in Jyothish Kumar vs. State of Kerala, 1996 (2) KLT 444 and Sebastian P. Joseph vs. K.S.R.T.C. 1998 (2) KLT 846 . 8. The learned Tribunal, on completion of the pleadings heard the respective counsel for the parties and passed the impugned order. The Tribunal noted that the applicant who was not eligible as on the date of issuance of Annexure-A4 notification cannot be permitted to challenge the filling up of available vacancies from the ranked list published pursuant to Annexure-A4 notification. The Tribunal relied on Rule 14 of the PSC Rules of Procedure and finally rejected the O.A. 9. Before us Smt. Rekha Vasudevan, learned counsel appearing for the petitioner, vehemently contended that the law is well settled that appointments beyond the number of vacancies notified would be illegal. The Tribunal relied on Rule 14 of the PSC Rules of Procedure and finally rejected the O.A. 9. Before us Smt. Rekha Vasudevan, learned counsel appearing for the petitioner, vehemently contended that the law is well settled that appointments beyond the number of vacancies notified would be illegal. She referred to the judgments of the Hon'ble Supreme Court in Rakhi Ray and Others vs. High Court of Delhi and Others, 2010 KHC 4079 and also in Anurag Kumar Singh and Others vs. State of Uttarakhand and Others, 2016 KHC 6665. She further submitted that the filling up of more vacancies than notified under Annexure-A4 has adversely affected the prospects of the petitioner as well as many others who became eligible after the date of notification. She asserted that filling up of vacancies beyond the 7 vacancies specifically mentioned in Annexure-A4 is unconstitutional and the learned Tribunal faulted in dismissing the O.A. On the other hand, Sri. Prasanth Sugathan appearing for the party respondents argued that the petitioner who was not eligible to apply in response to Annexure-A4 notification is not entitled to maintain the original petition and the O.A. itself was an abuse of the process of the court. He referred to the provisions of the PSC Rules of Procedure, specifically highlighting Rule 14 and submitted that in view of the specific provision in the Rules of Procedure of the Kerala Public Service Commission the general principle laid down by the Hon'ble Supreme Court in the judgments cited by the learned counsel for the petitioner cannot have application to the recruitment in question. The learned Government Pleader also opposed the contentions raised by the learned counsel for the petitioner and submitted that the petitioner has no locus standi to maintain this original petition. The learned Government Pleader further submitted that the order passed by the learned Tribunal is perfectly legal and does not warrant any interference by this Court in exercise of the supervisory jurisdiction. 10. We have perused the original petition, order impugned as also the documents produced apart from elaborately hearing the counsel appearing for either side. 11. We find that the petitioner was not admittedly eligible to seek appointment pursuant to Annexure-A4 notification. Therefore, the challenge to the recruitment process at his instance is not legally tenable. The petitioner cannot impugn the selection process unless he had a right at least to participate in the same. 11. We find that the petitioner was not admittedly eligible to seek appointment pursuant to Annexure-A4 notification. Therefore, the challenge to the recruitment process at his instance is not legally tenable. The petitioner cannot impugn the selection process unless he had a right at least to participate in the same. We also note that the O.A. was filed much after the ranked list was published. In the O.A. the petitioner challenged Annexure-A4. As Annexure-A4 is dated 30.8.2016, the said challenge was highly belated. Raising a challenge against a notification, which was issued more than 5 years ago and that too after the selection process culminated, can be considered only as a highly belated experimental litigation. Hence, the O.P. is liable to be dismissed for these reasons without entering into the merits of the case. However, since the O.P. was admitted and the respective counsel were heard elaborately we proceed to analyse the merits of the contentions also. 12. As noted above, the prime contention raised by the petitioner is that filling up of vacancies over and above the specific number of vacancies notified is illegal. A close reading of the notification shows that it cannot be considered as a notification issued only for filling up seven vacancies. It is clearly mentioned in the notification that the number is provisional, subject to change. Hence the number given was only tentative. It cannot be compared with notifications issued for specific number of vacancies. Whether such a method is permissible is the next issue. Rule 14 of the PSC Rules of Procedure provides that the Commission shall advise candidates for all the vacancies reported and pending before them and the vacancies which may be reported to them for the period during which the ranked lists are kept alive. In view of the said provision, the PSC cannot be held to have committed any illegality in issuing the notification in such a fashion. None of the judgments of the Hon'ble Supreme Court cited by the learned counsel for the petitioner pertains to a selection process undertaken by the Kerala Public Service Commission in accordance with the PSC Rules of Procedure. 13. It is trite law that circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. 13. It is trite law that circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision without proper analysis of factual matrices involved in the precedent and the case arising for consideration is not proper. In the present case the clear recital in the notification that the vacancies mentioned are tentative and the applicability of Rule 14 of the PSC Rules of Procedure make a glaring difference in the factual backdrop and the law laid down in the judgments cited by the learned counsel for the petitioner cannot be applied in the facts of the case. 14. In Annie vs. Commissioner, Chalakudy Municipality and Others, 1984 KLT 170 , a learned Single Judge of this Court analysed the provisions of Rules 13 and 14 of the said Rules and held as follows: “10. It is perhaps possible to contend that this part of R.14 in a way conflicts with the sweep of R.13. But, the conflict, if any, is not irreconcilable. The two rules can be interpreted harmoniously so as not to render either rule impotent or otiose. R.13 must be read subject to R.14. In other words, excepting in contingencies as contemplated in R.14, a ranked list published by the Service Commission shall have life only during the period contemplated in R.13; or in other words, notwithstanding the lapse of the period of the ranked list as per R.13, the ranked list could be utilised for the limited purpose of advising candidates in relation to vacancies reported to the Service Commission before the lapse of the ranked list. The same idea could be conveyed by stating that at the expiry of the period of a ranked list as contemplated in R.13, what lapses is the ranked list except to the extent of the persons who are to be advised in accordance with the vacancies which may be reported to Service Commission before the lapse of the ranked list. This is the only rational and reasonable way of understanding R.13 and 14 of the Rules. If that be so there was nothing wrong in the Service Commission advising candidates even after the lapse of the ranked list in relation to vacancies reported to them before the lapse of the ranked list. This is the only rational and reasonable way of understanding R.13 and 14 of the Rules. If that be so there was nothing wrong in the Service Commission advising candidates even after the lapse of the ranked list in relation to vacancies reported to them before the lapse of the ranked list. This is the view taken by Khalid, J. (as he then was) in C. Murughan and Others vs. State of Kerala and Others, 1982 (2) ILR. (Kerala) 74 and I am in respectful agreement with the same. Petitioners' challenge against the advice by the Service Commission and the contemplated appointments must necessarily fail.” 15. We note that a Full Bench of this Court, in Unnikrishnan Nair vs. State of Kerala, 2019 (1) KLT 896 (F.B.) has relied on the above view of the learned Single Judge. 16. Later, in Jyothish Kumar vs. State of Kerala, 1996 (2) KLT 444 this Court considered a case arising from similar notification wherein a similar note was included after stating the number of vacancies to the effect that the vacancies that are to arise till the expiry of the list shall also be filled up from the list. Referring to Rule 14, the learned Single Judge held that the specific provision in the PSC Rules of Procedure and also the clear statement in the recruitment notification permits filling up of vacancies beyond the number specifically stated in the notification and the same will not offend Articles 14 or 16 of the Constitution. Recently, a Division Bench of this Court, in Shalu Varghese vs. State of Kerala, 2023 KHC Online 727 noted the principles laid down by the Hon’ble Apex Court and the distinct position in the rules of procedure regulating selections by Kerala PSC, in view of the provisions contained in Rules 13 and 14 of the Rules of Procedure. 17. The general principle that filling up of vacancies, more than that has been notified is illegal cannot be applied in the facts of the case at hand, in view of the above discussion. In Annexure-A4 there is specific statement that vacancies anticipated during the currency of the ranked list will also be filled up from the same. Rule 14 of the Rules of Procedure enables the Public Service Commission to adopt such a course and to fill up vacancies arising during the currency of the ranked list. 18. In Annexure-A4 there is specific statement that vacancies anticipated during the currency of the ranked list will also be filled up from the same. Rule 14 of the Rules of Procedure enables the Public Service Commission to adopt such a course and to fill up vacancies arising during the currency of the ranked list. 18. The petitioner has raised a challenge against Rule 14 in this original petition. However, we note that such a relief was not sought in the O.A. We are mindful of the jurisdiction we exercise in this case. In Estralla Rubber vs. Dass Estate Pvt. Ltd. (2001) 8 SCC 97 , the Hon’ble Apex Court held thus: “The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in number of decisions of this Court. The exercise of power under this Article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do duty expected or required by them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the courts subordinate or tribunals. Exercise of this power and interfering with the orders of the courts or tribunal is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this Article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the fact of the record. The High Court can set aside or ignore the findings of facts of inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or Tribunal has come to.” Hence, in exercise of the jurisdiction under Article 227, we cannot proceed to enlarge the scope of the litigation by considering challenges which were not raised before the Tribunal. 19. 19. A Division Bench of this Court, in the judgment reported in T. Vijayakumar and Others vs. State of Kerala Represented by the Secretary to Government, Animal Husbandry Department and Others, 2014 (1) KLT 186 clarified that the visitorial jurisdiction under Article 227 of the Constitution of India cannot be extended to widen the scope of an original petition to include reliefs not claimed and grounds not raised before the Tribunal. Therefore, we cannot entertain the challenge against Rule 14 in this original petition and as long as the said Rule remains in force, we cannot find fault with the official respondents in filling up vacancies which arose during the currency of the ranked list. 20. Hence, we conclude that the OP (KAT) only to be dismissed.